Pollution of the Uruguay River. The shielded information

Pollution of the Uruguay River. The shielded information

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By Víctor L. Bacchetta

Initiatives by civil society and even state powers, both in Uruguay and Argentina, to access information on the quality of the waters of the Uruguay River, in particular on the environmental performance of UPM's pulp mill, are facing an impassable wall whose bastion is the Uruguay River Administrative Commission (CARU) where the differences between the two governments justify the concealment.

To understand the role that CARU is playing today in the dissemination of information on the quality of the waters of the Uruguay River, we must go back to the judgment of April 20, 2010, of the International Court of Justice in The Hague on the binational litigation for the installation of the Botnia plant (today UPM) in Fray Bentos. In paragraph 281, the last of the recitals of the judgment, the Hague court stated:

"Lastly, the Court points out that the 1975 Statute places the Parties under a duty to cooperate among themselves, in the terms established therein, to ensure compliance with its object and purpose. The obligation to cooperate entails continuous monitoring of a industrial establishment, such as the Orión (Botnia) plant. In this regard, the Court observes that the Parties have a long and effective tradition of cooperation and coordination through CARU. Acting jointly through CARU, the Parties have established a real community of interests and rights in the use of the Uruguay River and in the protection of its environment ".

The following July 28, Presidents Fernández and Mujica agreed to establish within CARU a Scientific Committee made up of two scientists from each country, with the function of monitoring the Uruguay River and all industrial, agricultural and urban centers. that dump their effluents into the Uruguay River, and on August 30 the foreign ministers signed the formal agreement establishing the criteria for its operation.

The Hague wanted to rescue the positive tradition of the CARU, but did not foresee that, if the solution given by the court did not satisfy the parties, the mechanism that was the basis for cooperation before the conflict would become one of its greatest obstacles.

On the Uruguayan side

Under Law 18,381 on the Right of Access to Public Information, the lawyer and journalist Edison Lanza requested from the Uruguayan Foreign Ministry, on December 8, 2011, the results of the analysis of all the samples taken in the production plant of cellulose from UPM and from the mouth of the Gualeguaychú River, carried out on different dates and sent for evaluation to laboratories in Canada.

Twenty days later, Chancellor Luis Almagro issued a resolution by which "the requested information is declared confidential, until it is approved by the Scientific Committee". The reservation was based on the fact that it "could undermine the bilateral relations between the Argentine Republic and the Eastern Republic of Uruguay", resorting to one of the exceptions provided in Law 18,381 for that purpose.

After several months without modifying this situation and the information being released, Lanza initiated a judicial action authorized by the same law in order to review the reservation exception filed by the Uruguayan Foreign Ministry. The action substantiated the inadmissibility of the reservation on the basis that "the requested documentation constitutes public information in the possession of a state agency, but is not owned by them."

To justify this statement, he stated that "the CARU is a binational body, but it is financed with the taxes of the citizens of both countries and the Uruguayan delegation to CARU is designated by the Executive Power of Uruguay" and added that the information "is It is in the possession of the Uruguayan authorities, proof of this is the same resolution signed by the Minister of Foreign Affairs that declares it reserved. "

And to directly challenge the reservation, the action alleged that the resolution of the Ministry of Foreign Affairs does not observe "the existence of 'objective elements' that prove that the disclosure of the analyzes on the environmental situation of the Uruguay River will cause damage to the irreparable bilateral relationship, greater than the damage that the concealment of environmental information produces to the citizens of both countries. "

The intervening judge, Adolfo Fernández de la Vega, considered that the argument that the bilateral relations could be affected was valid because it was within the authority of the Administration and rejected the action "in limine", that is, without even considering it. Lanza considered this decision an inappropriate prejudice and has now requested its revocation, together with the transfer of the action to another competent court.

Meanwhile, the Scientific Committee does not present the information because it depends on the CARU and the binational commission does not agree on the criteria with which the results of the analyzes will be disclosed (See "No solutions in sight", 8/4/12) .

On the Argentine side

Although the Hague ruling was not totally favorable to their claim, which was the eradication of UPM from the Uruguay River, the Gualeguaychú assembly members agreed to test the contamination of the river with a scientific procedure recognized by both countries. With this base they lifted the access block to the Puente Libertador San Martín, but they would also be the most demanding in terms of the validity and rigor of the proposed road.

The stagnation of this process within CARU, where the Scientific Committee has carried out 14 sample extractions but the results are not disclosed, is generating a new point of exasperation. "The lack of disclosure of the analysis of the monitoring is functional to the plant and a censorship of the people, because access to a sacred right such as information is blocked," said Assemblyman Gustavo Puente.

Gradually, some institutional instances have joined the claim for access to information, such as the Office of the Ombudsman of the Nation, which directly proposed a modification of the CARU. For the Argentine ombudsman, Anselmo Sella, the riverside communities must be represented in the binational body, because they are the first to be affected and apparently the only ones interested in stopping pollution.

Sella's proposal is not something brought by the hair, there are innumerable experiences in the world of water resources management with the participation of neighboring communities and it is the model implemented in Argentina for the sanitation of the Riachuelo, next to Buenos Aires. On the other hand, it is the concept approved in the constitutional water plebiscite in Uruguay in 2004, although here it is far from being implemented.

In the last week, the Municipal Deliberative Council of Gualeguaychú, in the middle of a discussion where the Uruguayan government was accused of "bad faith", unanimously approved "to demand" the Argentine Foreign Ministry and CARU the dissemination of the results of the analyzes carried out at the UPM plant and, at the same time, that the possibility of resorting to The Hague again for non-compliance with the agreements and the Uruguay River Treaty be evaluated.

But there is no indication that the Argentine government wants more than the Uruguayan government to make this process transparent. If it had not been for Gualeguaychú, the Hague would not have been reached, because there was never a substantial divergence between the two governments. The Argentine Foreign Ministry is organizing a business mission to Finland, Sweden and Norway in search of investors to develop the forestry sector, including the production of cellulose pulp.

Wicked games

The accusation to the sister government, used from both sides of the river, tries to define responsibilities, but in reality it covers them up and adds fuel to the fire. If governments are not willing to reach agreements and enforce them, there is no other way to unblock the conflict that started in Botnia and now, within the privileged framework of CARU, extends to environmental control of the shared stretch of the Uruguay River.

The fact is that CARU was granted certain institutional attributes in order to guarantee cooperation and that is how it worked for a long period but, when a point of divergence in the environmental aspect arose, those same attributes allowed to paralyze the channeling of processes at his charge, especially with regard to the disclosure of information held by the body, to extremes that may be unimaginable.

For example, letters sent to CARU by the Supreme Court of Justice of Uruguay, requesting information related to certain judicial processes in progress in this country, are not answered because the Uruguayan delegation itself is opposed to doing so within the binational body, which logically responds to the directives of your government. To do this, an attribute of the CARU is used: jurisdictional immunity.

Not in the Treaty, but in the Headquarters Agreement signed in 1979, when CARU settled in Uruguay, it was established in Article 4. that:

"The Commission and its assets, wherever they may be found and whoever has them in their possession, enjoy immunity from jurisdiction except in special cases and to the extent that the Commission expressly renounces it. It is understood that such waiver of immunities will not have the effect of subjecting said assets to any executive measure. The Commission will take the appropriate measures and will collaborate with the Uruguayan authorities to resolve disputes arising from contracts and other acts of private law to which it is a party. "

Despite the last sentence, dominate the first. "It is immunity from jurisdiction. And Uruguay is going to oppose any kind of intervention by the Justice, for reasons of the Treaty and our Statute," Luis Hierro López said in a commission session, speaking on behalf of the Uruguayan delegation, It is also made up of the Captain (R) Gastón Silbermann, who chairs it, the CN (CP) Luís Raffo and the engineer David Doti Genta.

In his action before the Uruguayan justice, Lanza alleges: "If the bilateral relationship is going to be built on the concealment of relevant public information that citizens should know, we would be admitting that the interests of the States are above the fundamental rights of the persons". If the current situation persists, it could go even further, placing CARU above the states that compose it.

Victor L. Bacchetta

Video: Audio Books: 003 SSC 10th Geography - Physiography and Drainage (June 2022).


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